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Proposed video game settlement could help current NCAA players

As many as 100,000 college football and men's basketball players could receive money from a $40 million proposed settlement of lawsuits related to the alleged use of their names and likenesses in video games.

As many as 100,000 college football and men's basketball players – including athletes with remaining eligibility -- would be able to receive money from a $40 million proposed settlement of claims related to the alleged use of their names and likenesses in NCAA-themed video games.

The proposed settlement, filed Friday in California with U.S. District Judge Claudia Wilken, would conclude allegations made against video game manufacturer Electronic Arts and Collegiate Licensing Co., the nation's leading collegiate trademark licensing and marketing firm.

EA and CLC were co-defendants with the NCAA in one case filed on behalf of plaintiffs led by former Arizona State and Nebraska quarterback Sam Keller and another on behalf of plaintiffs led by former UCLA basketball player Ed O'Bannon. EA was a sole defendant in two other cases -- one on behalf of former Rutgers football player Ryan Hart and another on behalf of former West Virginia football player Shawne Alston.

The NCAA is not covered by the proposed deal, and Friday's filing disclosed some of the financial stakes in the continuing portion of the O'Bannon plaintiffs' anti-trust lawsuit, which is set for trial beginning June 9. The filing notes that in that case alone, the amount of the plaintiffs' attorneys' fees "exceeds $30 million and expenses exceed $4 million." The plaintiffs have said in court documents they are seeking relief that includes "attorneys' fees, costs, other expenses."

The NCAA also is continuing to grapple with the Keller plaintiffs in a case that recently was set for trial in March 2015.

The claims addressed in Friday's filing primarily cover players who were on Bowl Subdivision football or Division I men's basketball rosters dating from May 4, 2003. But various versions of the video games included so-called classic teams from earlier years, and players from those teams also would be eligible for settlement money.

The proposed settlement creates a scenario under which some current players who have appeared in recent versions of the game could be allowed to seek settlement money even as they continue to be eligible to play, said one of the Keller and Alston plaintiffs' attorneys, Leonard Aragon. (Aragon also provided to USA TODAY Sports the estimate of the overall number of current and former players who would be eligible to participate in the proposed settlement.)

The NCAA "is going to have to confront that issue," said Robert Carey, one of the Keller and Alston plaintiffs' attorneys. "But given all of the problems that the NCAA is facing, I can't imagine they'll want to take that on. This is not compensation. This is not pay for services. This from somebody illegally using your image."

NCAA spokeswoman Stacey Osburn said the association is "reviewing the documents" from the settlement filing.

Michael Hausfeld, the lead attorney for the O'Bannon plaintiffs, could not be immediately reached for comment.

The documents filed Friday say that EA can rescind the settlement if "a certain number of class members opt out" and maintain their rights to sue on their own. The filing said the specific number had been redacted from the publicly available version of the documents.

The various plaintiffs' attorneys will seek fees not to exceed 33% of the proposed settlement total ($13.2 million) and expenses not to exceed $2.5 million, the documents say. The Keller and O'Bannon cases were filed nearly five years ago and even if the settlement proceeds smoothly, it will require months' more work by the lawyers, who wrote their financial request "is particularly reasonable in light of the advanced stage of litigation in the O'Bannon case," which also involves the anti-trust claims, which are scheduled for a trial beginning June 9.

A roster of named plaintiffs would receive incentive payments ranging from $15,000 apiece for Keller, O'Bannon and Hart, to $5,000 or $2,500 for others.

Beyond that, the money would be distributed based on a formula that takes into account the number of players who end up making valid claims; whether the players were on a football or men's basketball roster, or also were depicted in a game; and the number of years in which they were on a roster and/or appeared in the game. If an extremely large percentage of players eligible to make claims do so, the per-player payments could range from about $50 to several hundred dollars, Aragon said. If half of the players eligible make claims, the per-player payments could range from around $100 to around $2,000, Aragon said.

"Plaintiffs believe that the recovery is similar to the amount settlement class members would have received in an arm's length negotiations with EA had the NCAA not prohibited student-athletes from licensing their names, images, and likenesses," Friday's filing said.

The document states that the proposed settlement would release all claims against EA and CLC, but it also suggests that there is evidence that strongly backs the plaintiffs' allegations that the avatars in the video games are modeled on the actual athletes. This is a pivotal claim in the Keller plaintiffs' ongoing case against the NCAA, which has been set for trial in March 2015. It also is a claim that the NCAA unequivocally contested in a recent pre-trial filing in the O'Bannon case, which still involves issues related to video games.

The NCAA "contends that the claims against the NCAA based on EA's NCAA-themed video games are not supported because those games do not utilize the name, image or likeness of college football and men's basketball players," the NCAA wrote in the pre-trial filing May 14. "Instead, EA's NCAA videogames utilize generic faces and images of football and basketball players that are not based on actual individuals."

In discussing how it would be determined whether a particular player appeared in a video game – an element of determining a player's possible settlement amount -- Friday's filing on the proposed settlement said: "EA is disclosing, as part of confirmatory discovery, electronic spreadsheets containing the criteria … that the claims administrator can use to identify virtual players in NCAA-branded videogames.

"To the extent the electronic data is missing or incomplete … Plaintiffs pulled the school, assigned uniform number, position, sport/division, and home state directly from the roster files stored on each NCAA-branded videogame. …

"Plaintiffs used this data to create a database containing the objective criteria used by EA and the same objective criteria pulled directly from NCAA football and basketball rosters. This information, along with the fact that all avatars in EA's games are depicted in uniforms with school names, logos and unique colors, allows the administrator to easily match actual student-athletes to their virtual counterparts using the same objective criteria used by EA to misappropriate student-athletes' likenesses."